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What is the real context of today’s #SCOTUS hearing? Here are some facts:
Over the next few days, senators will ask Judge #Kavanaugh questions about #SCOTUS cases, his record, and his qualifications. Some of these questions will be fair. Many others will be unfair.
Some of these unfair questions will ask him to promise to vote a certain way in particular cases likely to come before the Court.
When you look at the history, that is precisely why confirmation hearings developed—so that Senators could ask nominees how they would vote in particular cases.
The first #SCOTUS confirmation hearing occurred in 1916, when Justice Brandeis was nominated. Brandeis was controversial for several reasons—including, it has to be said, because he was Jewish.
But Senators also wanted to determine whether Brandeis would use a seat on #SCOTUS to advocate for progressive causes he championed as a public-interest attorney. They wanted to know how he would vote in particular cases.
They didn’t ask Brandeis to testify, but asked outside witnesses to talk about his nomination.
The next important moment was in 1939, when Justice Frankfurter became the first #SCOTUS nominee to testify before the Senate. At the time, Frankfurter was controversial in part because he was he was born overseas.
But Senators also worried that Frankfurter was a radical based on his defense of anarchists in court. So again, Senators wanted assurances Frankfurter would reach certain results. Frankfurter, however, declined to engage w/Senators & insisted his public record spoke for itself
Justice Stewart’s 1959 nomination was another turning point. Senators seeking to resist Brown v. Board of Education wanted to grill Stewart about his views on integration. Others wanted to grill Stewart about his views on national security.
Twenty-eight years later, the Senate considered Robert Bork’s nomination. This was another turning point, and in my view, remains a rock-bottom moment for the Senate.
Without getting into the gory details, suffice to say that Senator Ted Kennedy and Judge Bork did not agree on constitutional law. Kennedy’s response was to savage – unfairly – the results he thought Bork would reach.
This history shows that, over the better part of a century, the Judiciary Committee has gradually created a norm in which members demand that nominees talk about specific cases in return for favorable treatment.
Nominees, for the most part, have resisted trading confirmation in exchange for promises on how they’ll vote. To give two famous examples: Justice Scalia refused to say whether Marbury v. Madison was settled law, on the ground that it could come before him.
Sure enough, last term in Ortiz v. United States, #SCOTUS considered a case implicating the scope of Marbury. Likewise, Justice Ginsburg created the so-called “Ginsburg standard”—no previews, forecasts, or hints.
Every current member of the Supreme Court has adhered to a similar principle.
This undermines the legitimacy of the courts. Over time, no free people would accept a judiciary that simply imposes its own preferences on the country, absent fidelity to legal principle.
There’s a better way for the #Senate to approach its work. This process should be about a jurist’s qualifications, character, and approach to judging. It should not be about results in a select number of cases.
